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Google at al excluded from extended safe harbour in Australia

By | Published on Wednesday 6 December 2017


The Australian government won’t extend safe harbour protection to the likes of Google and Facebook in the latest overhaul of the country’s copyright law. Which is a development that will please the copyright industries which would rather Google – or at least its YouTube platform – didn’t have safe harbour protection elsewhere in the world. Though safe harbour could still be extended to the web giants in Australia in the future.

As previously reported, the copyright safe harbour – which protects internet companies from liability when customers use their networks to infringe copyright – was much more narrowly defined when originally incorporated into Australian law. Whereas in Europe and the US a whole plethora of internet companies enjoy protection, under Australian law safe harbour only really applies to internet service providers.

With the Copyright Amendment Bill being debated in the Australian parliament earlier this year, the tech sector put pressure on ministers there to use the new legislation to bring the country’s safe harbour more in line with the US and Europe.

However, when such a proposal was put on the table, the Australian media and music industries hit out. They pointed out that the safe harbour had proven controversial in both the US and Europe, where the music industry is busy trying to get user-upload platforms like YouTube excluded from protection.

While reviews were underway in the US and Europe, they argued, it would be silly for Australia to adopt the current safe harbour systems that operate in America and the European Union. Plus, unlike other proposed copyright reforms, the Australian government itself hadn’t done any proper analysis of the safe harbour expansion being considered.

Responding to those arguments, in March the government dropped the safe harbour proposal from its copyright bill entirely. A new version of that legislation is being unveiled today, and safe harbours are back in there, but protection will not be extended to Google and Facebook et al. New beneficiaries of the safe harbour under the latest proposals are libraries and educational or cultural institutions.

Discussing the latest draft of the copyright reform legislation, Australia’s Communications Minister Mitch Fifield said that safe harbour protection would initially be extended to organisations that “provide beneficial services to all Australians and who are working collaboratively with copyright owners to address infringement”.

Ministers now plan further consultation on extending the safe harbour to the web giants, Fifield confirmed. Which possibly means Google will ultimately get its safe harbour protection down under, but any future further reform, Fifiled added, would be “mindful of the need to ensure the rights of creators are properly protected”.

He added: “Australia’s copyright industries make a significant contribution to our economic and cultural life, including collectively generating approximately AUS$122.8 billion in economic activity, AUS$6.5 billion in exports and employing more than one million Australians”.

You suspect Australian lawmakers will now be watching how safe harbour reform works out in Europe, as further drafts of the new European Copyright Directive continue to go through the motions in Brussels. That may influence Australia’s next steps on this issue.